Newman v. Newman

• Decision Date: 24 March 1905
• Citation: 86 S.W. 635
• Parties: NEWMAN v. NEWMAN.
• Court: Texas Court of Appeals

86 S.W. 635

NEWMAN v. NEWMAN.

Court of Civil Appeals of Texas.

March 24, 1905.

Error from District Court, Washington County; Ed. R. Sinks, Judge.

Action by George W. Newman against Sarah J. Newman. From a judgment for plaintiff, defendant brings error. Reversed.

Mathis & Pace and Searcy & Searcy, for plaintiff in error. Bowers, Swearingen & Schulz, for defendant in error.

GILL, J.

George W. Newman brought this suit against Sarah J. Newman, his wife, to procure the cancellation of two deeds made and procured to be made by him to her in consideration, as recited therein, of $1 and love and affection, and by their terms conveying certain lands to her in her separate right. He also sought to have the court declare the status of the title of two other tracts conveyed to Mrs. Newman by third parties; alleging that though they were acquired during marriage, and by community funds, and were therefore community property, she was claiming them in her separate right, and that her claim was a cloud upon his title thereto. The suit was filed in April, 1902. In August, 1904, the wife having been duly cited and having failed to answer, judgment by default was awarded the plaintiff as prayed for. Mrs. Newman has brought the case here by writ of error, and contends, among other things, that the petition is bad on general demurrer, and therefore cannot support the judgment by default.

The two deeds first assailed are set out in full in the petition, and are absolute on their face. The first and second recite a conveyance for the separate use of the grantee. The third contains no such recital, but is a simple deed by McNeil and wife to Mrs. Newman, wife of G. W. Newman, upon a recited valuable consideration paid by the wife; the recitals not disclosing that the consideration so paid was from her separate funds. The fourth is alleged to be in the possession of plaintiff, and, as to that, it is alleged that it was executed by George Harbour to Mrs. Newman, and to have been delivered to her, and to have conveyed a tract of 225 acres. As to these two last-named deeds, the allegation is that the lands were purchased with community funds, and the prayer is that the land be declared to be community property.

We set out in full the part of the petition embodying the grounds of assault upon the first two deeds.

"That the plaintiff and defendant are husband and wife, and are now living together as husband and wife, and have been for more than forty years. That all of the property described in paragraphs 2 and 3 was prior to the time of the execution of the aforesaid deeds the separate homestead property of the plaintiff, he having inherited the same from his father.

"That heretofore, to wit, during the summer of 1883, the plaintiff herein was unduly influenced and his mind unduly excited over the rumor and talk of a contemplated personal damage suit against him, the said plaintiff, and that by reason thereof he was unduly advised and influenced to execute the aforesaid deed described in paragraph 2, and to cause to be executed by his brother, the said Joel Newman, the deed described in paragraph 3.

"That, being thus unduly influenced and excited and worried, and in great distress of mind, plaintiff herein, for a grossly inadequate consideration, executed and caused to be executed the aforesaid deeds. That the aforesaid deeds do not, in truth and in fact, recite the true consideration, but that, in consideration of the execution of the aforesaid deeds, the plaintiff herein caused his said wife, the defendant herein, to execute and deliver to him, the plaintiff, her will, by the terms of which she was to give, bequeath, and grant to the plaintiff all of said property above described.

"That said will was in fact made, signed, and delivered to the plaintiff by the defendant as her last will and testament at the same time, and in consideration of the execution of the aforesaid deeds. That the aforesaid deeds described in paragraphs 2 and 3 were never delivered to the defendant, but were retained and held in possession by the plaintiff until the 29th day of August, 1883, when the plaintiff filed said deeds with the clerk of the county court of Washington county for record, and the same were duly recorded in the deed records of said county, in volume 16, pp. 91, 92, 93, and 94. That after the said deeds were recorded they were delivered back to the plaintiff herein, and have ever since been in his possession, and are now in his possession, and have never been either actually or constructively delivered to the defendant.

"That at the time of the execution of said deeds the defendant executed as aforesaid a will, which, by agreement of the plaintiff and defendant, then and there entered into, and in consideration of the execution of the aforesaid deed by plaintiff and his said brother, Joel Newman, was to be and remain the last will and testament of the said defendant. That in further compliance with said agreement, and as a further consideration of said execution of the aforesaid deed, the said will was to be delivered to plaintiff, and kept in his possession until the death of the said defendant. That the said will was in truth and in fact delivered to said plaintiff, and remained and was kept in his possession up to about November of last year, when the defendant herein unlawfully and willfully, and in violation of her agreement above stated, and without the permission and consent of the plaintiff, opened the plaintiff's trunk and extracted therefrom the said will. That, as soon as the plaintiff herein discovered that the said will had been taken from his possession, he demanded of the said defendant the possession of said will, in compliance with the agreement heretofore entered into between them.

"That the said defendant refused to return said will to the possession of the plaintiff, and either retains possession of said will, or has destroyed the same; and the defendant, if she has not destroyed the same, is hereby notified to produce said will on the trial of this cause, or secondary evidence will be introduced to prove the contents thereof. That since the said defendant has obtained possession of said will, and prior to that time, she has repeatedly stated to the plaintiff and other parties that she intended to revoke said will and to make another and different one. That the said defendant has otherwise, in her manner and treatment of plaintiff herein, clearly demonstrated that she intends to bequeath said property to others than the plaintiff herein, and plaintiff avers that he believes and has reasons to believe that the defendant has already revoked said will as her last will and testament.

"Plaintiff represents that the consideration as above set out was grossly inadequate, and that his excitement and mental condition at the...